PA, R (on the application of) v Governor of Her Majesty's Prison Lewes

Subject: Judicial review of the Governor's refusal to release the claimant on Home Detention Curfew (HDC).

The court analysed the statutory power under section 246(1) of the Criminal Justice Act 2003 and the relevant Prison Service policy (Prison Service Order 6700, Prison Service Instruction 31/2003 and PSI 31/2006). The central question was whether the claimant met the exceptional circumstances test in paragraph 19 of PSI 31/2006, in particular whether he was "infirm by reason of disability". The Governor had undertaken risk assessment and considered medical and prison staff reports (including those of Dr Procopio and Dr Ardron) and probation and chaplaincy material.

The judge concluded that the ordinary meaning of "infirm" in the policy context was directed to a degree of physical or mental frailty of a kind that would plainly justify exceptional treatment. Given the totality of the evidence (the claimant coping in many prison routines, attending visits and guitar lessons, declining full engagement with offered CBT, and medical opinion that his condition was managed in custody), it was open to the Governor rationally to conclude the claimant was not "infirm" for the purposes of PSI 31/2006. No procedural unfairness arose from the production of a further psychiatric report during reconsideration. The claim was dismissed.

The claimant, a 25 year old man suffering from documented social phobia, was serving a three year sentence and became eligible for HDC. Representations sought release on the basis of paragraph 19 of PSI 31/2006 which identifies three features that, together, amount to "exceptional circumstances": (1) extremely small likelihood of re-offending; (2) no previous convictions; and (3) infirmity by reason of disability or age. The claimant satisfied the first two criteria; the contested issue was whether his social phobia made him "infirm by reason of disability".

The Governor considered detailed material including the Prisoners Advice Service representations, a 2008 report from Dr Angus, contemporaneous prison medical and welfare records, reports from the chaplaincy (Glen Hocken and Gwyneth Watkinson), a probation manager's assessment (Colin Fordham), and later psychiatric reports by Dr Procopio (supporting release as prison was "the worst possible environment" for the claimant) and Dr Ardron (concluding the disorder was common in prisons, manageable there and not of sufficient severity to amount to infirmity for exceptional-release purposes). The Governor refused release on 19 November 2010 and reaffirmed that decision after further medical material on 22 December 2010 and 27 January 2011.

The court framed the legal issues as: (i) the construction of "infirm by reason of disability" in the prison policy context; (ii) whether the Governor's decision that the claimant was not infirm was lawful and reasonable on the material; and (iii) whether there was any procedural unfairness in the consideration of a late psychiatric report. The judge determined that "infirm" is not a technical medical term but in this policy context denotes a manifest degree of frailty or debilitation such that exceptional release would plainly be justified. Applying that meaning to the evidence, the Governor could reasonably conclude the claimant was not infirm: despite substantial anxiety and a disabling social phobia, he was managing aspects of prison life, had not required continuous inreach mental health care, engaged selectively with staff and family, and had declined some offered interventions. The late psychiatric material did not create unfairness sufficient to vitiate the decision.

The remedy sought was judicial review quashing the Governor's refusal and ordering release on HDC; the court dismissed the claim and refused relief.

First instance: The claim for judicial review is dismissed. The court held that the Governor lawfully exercised the Secretary of State's discretionary power under section 246(1) Criminal Justice Act 2003 as guided by Prison Service Order 6700 and Prison Service Instructions 31/2003 and 31/2006. The Governor was entitled to find that the claimant's social phobia, although disabling, did not amount to being "infirm by reason of disability" for the narrow, exceptional-release purpose of paragraph 19, and there was no unfair procedural defect in considering a further psychiatric report during reconsideration.